Legal Commentary

Philip Hamburger?s New SSRN Paper Provides Evidence Against Incorporation

By Jim Lindgren

One of the issues in the McDonald gun rights case before the US Supreme Court is whether the Privileges or Immunities clause of the 14th Amendment was intended to incorporate the Second Amendment.

In a new paper available on SSRN, historian Philip Hamburger argues that incorporation was not intended:

What was meant by the Fourteenth Amendment?s Privileges or Immunities Clause? Did it incorporate the U.S. Bill of Rights against the states? Long ignored evidence clearly shows that the Clause was an attempt to resolve a national dispute about the Comity Clause rights of free blacks. In this context, the phrase ?the privileges or immunities of citizens of the United States? was a label for Comity Clause rights, and the Fourteenth Amendment used this phrase to make clear that free blacks were entitled to such rights.

Hamburger?s thesis is that the 14th Amendment did not incorporate the Bill of Rights but rather merely made a part of the constitution an interpretation of the Comity Clause (the Privileges and Immunities Clause in the original constitution). In debates about the Comity Clause rights of free blacks, both supporters and opponents of slavery assumed that only citizens of the United States had the benefit of the Comity Clause, but whereas many Southerners assumed that free blacks were not U.S. citizens, many Northerners assumed that they were. On this assumption, anti-slavery advocates eventually argued for the Comity Clause rights of free blacks by speaking of these as ?the privileges and immunities of citizens of the United States.? And the Fourteenth Amendment used this phrase to constitutionalize this interpretation of the Comity Clause, thus protecting free blacks.

He asserts that other scholars largely miss the debate about the Comity Clause rights of free blacks and thus miss the signfiicance of the Privileges or Immunities Clause of the 14th Amendment.

Hamburger argues that the phrase ?the privileges and immunities of citizens of the United States? was used in other contexts, but in the national debate about free blacks, it was used as he describes it. Moreover, he shows a direct genealogy of ideas from this debate to the 14th Amendment. Thus, notwithstanding the variety of usages, a genealogy of context, text, and meaning shows what the Privileges or Immunities Clause meant.

Among the nice other points of the paper are:

(a) Bushrod Washington?s opinion in Corfield v. Coryell, which is taken as foundation of so many arguments for incorporation and discussions about ?fundamental? rights, is actually a racist, Southern argument that justifies states in excluding free blacks?thus making it a gentle, more acceptable predecessor of Dred Scott.

(b) The Privileges or Immunities Clause was preceded in 1866 by Shellabarger?s Privileges and Immunity Bill, which was entitled a bill to protect ?the privileges and immunities of citizens of the United States.? This nicely confirms that the focus of concern and of the language soon used in the 14th Amendment was the Comity Clause, not incorporation.

(c) The incorporationists look at Bingham?s statement after the fact in 1871 but ignore the national movements in the 1870s that sought a sort of incorporation?the nativist and secularist movements?which assumed that the constitution has not yet incorporated the First Amendment.

What I take from this is that the Civil War Amendments were more remedial than has been appreciated?an amendment to end slavery, an amendment to extend the Comity Clause to all citizens (thus effectively overruling Dred Scott by constitutional amendment), and an amendment to grant the vote.

I think the case for incorporating the 2d Amendment is at least as strong as for incorporating the 1st Amendment, but for now I am tentatively persuaded that incorporation was not intended by the framers of the 14th Amendment or indicated by the language that was adopted.

Full post as published by The Volokh Conspiracy on February 26, 2010 (boomark / email).